Citations
- 93 F. Supp. 3d 1331
Full opinion text
OPINION AND ORDER DENYING SANCTIONS
JAMES LAWRENCE KING, District Judge.
One of the greatest transgressions that can be committed against a federal court is to knowingly perpetrate a fraud and to commandeer and manipulate the legal processes to do so. This case involves just such a fraud. What this Court described as the “legal finale to a three-year opera with a stunning libretto” more than two years ago has come back for an even more stunning-encore.
Motivation, Inc. seeks to invoke this Court’s inherent power to sanction bad-faith litigation conduct one of the alleged perpetrators or enablers of the fraud, Plaintiff JTR’s outside general counsel, attorney Bruce L. Silverstein.
I. Background
This case involves a criminal conspiracy against the United States District Court for the Southern District of Florida, which began with the filing of a completely fabricated admiralty case falsely alleging a fictitious discovery of lost treasure from an 18th century Spanish galleon.
The corrupt intent of the criminally inspired conspiracy of faking a discovery of lost Spanish treasure of thousands of junk emeralds previously planted on the bottom of the ocean to be later “discovered” as newly discovered res, subject to the admiralty jurisdiction of the United States District Court, was to obtain a judicial decree awarding the conspirators not only title to the previously planted emeralds, but also an injunctive order preserving to the criminals the exclusive right to continue, searching the fake, imaginary site of the “discovery,” thus preserving the opportunity to continue to “salt” the site with junk treasure for sale to innocent victims (purchasers and investors) who had been misled into believing the discovery was true and genuine based on the Court’s admiralty decree.
Although the future victims of the conspirators would have been the purchasers of the fake gems and the investors who were expected to invest in the continued salvage operations of the fake discovery, the immediate victim was the United States District Court and the American system of justice. The entry of a final decree as sought by Plaintiff would have lended credence to the conspirators’ outrageously false claims of a new discovery.
The corrupt criminal conspiracy of the false discovery of an eighteenth century Spanish treasure galleon and the filing of a totally false, fictitious admiralty case quickly gained a number of supporters willing to believe the incredible lies of the originators of the fraud, Jay Misc.vich and Steve Elsehlepp (the divers who reported the discovery of the previously planted junk emeralds). Among these supporters who enthusiastically commenced to promote the fraud were family members and their business associates, private investors, large corporate law firms, local and national media sources, including the CBS program “60 Minutes,” the Smithsonian Institute, and elected officials of the Colombian government.
The involvement of all of these individuals and corporate entities produced, in some instances, astounding results. The record indicates that a more than three million dollar investment was made in furtherance of the criminal enterprise. The record further indicates that various law firms have invested legal services (some paid, some unpaid) of several million dollars in attorneys’ fees and costs of litigation. The case has additionally spawned hundreds of hours of judicial labor in the three trials that have thus far been conducted.
The numerous parties and entities are listed in the foregoing paragraphs. Some are innocent, some are not. Some can be proven as knowing members of a criminal conspiracy to deceive and defraud the United States Court of the Southern District of Florida, and some are not so provable by the high requirements of the governing standard of proof for sanctionable conduct. This is the issue of this part (the third trial) of what appears to be a never-ending series of trials and evidentiary hearings flowing out from the original admiralty case. Who knew? What did they know? When did they know? Did they participate with the knowledge and intent to commit a criminal fraud on the court and innocent victims or were they dupes and unknowing aids to the original criminal conspirators who were fully aware of the fraud on the court?
As a secondary issue in determining proof of sanctionable conduct, are the persons who cannot be proven to have had direct knowledge of participating in the planting of emeralds in the ocean subject to sanctions for deliberately closing their eyes to the fraud being committed in deliberate indifference to the harm their activities were causing? Is the proof in this record substantial enough to prove by clear and convincing evidence that such individuals (if any) are to be sanctioned? Is it a legal offense for such an individual to defend on a basis that “I never knew that the conspirators purchased fake emeralds and planted them on the bottom of the ocean since they never told me that”? Should they, if the evidence is clear and convincing that Jay and Steve were obviously lying about making a discovery of lost treasure, haye withdrawn from the conspiracy at the time it became known to them or made the facts of the fraud known to the court?
This, the Amended Motion for Sanctions by Claimant Motivation, Inc., raises a plethora of legal issues not at issue in this Court’s order of January 25, 2013, or Judge Moore’s Order of June 19, 2014: Legal issues pertaining to sanctions of persons and entities not parties to the original admiralty action; the legal standard for burden of proof, i.e., clear and convincing evidence; the elements of deliberate ignorance; the inherent authority of a court to impose sanctions; and the Court’s jurisdiction to sanction parties who have not personally been served or appeared in litigation pending before the Court prior to sanctions being sought against that person or entity.
A combination of this Court’s January 25, 2013, Opinion and Final Order (DE # 199) (the “Admiralty Order”) and the Honorable United States District Judge K. Michael Moore’s June 19, 2014, Findings of Fact and Conclusions of Law (DE # 445) (“Judge Moore’s Sanctions Order”) adequately details the procedural and factual background of this tale, and the relevant portions of each will be reproduced verbatim herein. As Judge Moore succinctly put it, “[t]he factual narrative in this matter has two versions: the tall tale and the truth.” Judge Moore’s Sanctions Order, DE # 445 at 2.
A. The Tall Tale — The Admiralty Trial
This story — as far as the Court knew on January 25, 2013, when it entered its Admiralty Order — begins with the alleged discovery by two treasure hunters of a cache of jewels on the bottom of the Gulf of Mexico off of Key West, Florida:
On or about January 11, 2010, friends and dive partners Jay Miscovich (“Jay”) and Steve Elchlepp (“Steve”) retrieved a handful of green stones from the floor of the Gulf of Mexico, some 30 miles North of Key West. As they continued to dive the site, the handful turned into a heap of stones which Steve testified now weighs between 100 and 250 pounds. Jay and Steve were not searching the area by happenstance. As professional maritime treasure hunters, Jay and Steve were following a lead purportedly provided by a map purchased from Jay’s old acquaintance Mike Cunningham, a destitute handyman from Pennsylvania. For three days straight, Jay and Steve went out on a boat to the area of the ocean shown on the map, to search for treasure.
Steve commenced random diagnostic dives (“bounce dives”) in approximately 65 feet of water without success until, on the afternoon of the third day, January 11, 2010, when Jay decided to accompany Steve on the last dive. The visibility underwater was either less than 15 feet, or 15 to 20 feet, or 20 feet (there was contradictory testimony as to this fact from Jay and Steve), and the area close to the floor of the ocean had a grey, monochromatic tone. It was during that dive that Jay, according to his testimony in court, noticed some “shiny objects” approximately fifteen feet away that he thought were pieces of broken glass “glistening on the bottom.” As he approached the objects, he saw “a lot of green all over the bottom.” Jay picked up a few of the objects, and then motioned Steve up to the surface to show him the objects. Electrified, the two men grabbed the four empty sandwich bags from their lunch and dove back to the ocean floor to retrieve more of the green stones. Jay describes it as feeling “like picking cherries on a cherry tree,” because the stones were so concentrated in the area and easy to find. The pair filled the four bags and then stopped for the day, heading back to Steve’s home. As Jay noted in his testimony, they did not have enough air to make another dive.
Over the next few months, Jay and Steve went back out repeatedly to retrieve more of the stones. Steve testified he went alone on a number of occasions and, whether jointly or alone, he retrieved stones from the site every time he dove on the site. The recovered material was taken to Steve’s Key West home, cleaned and stored in a safe. In addition to the retrieval operations taking place in Key West, Jay and Steve also sought out potential investors for their fabulous discovery of thousands of what they believe to be lost Colombian emeralds scattered on the floor of the ocean.
Admiralty Order, DE # 199 at 2-5.
This Court noted in its Admiralty Order that testimony presented at trial by Dr. Robert H. Baer, a professional archaeologist hired to draft a treatment of the find for possible public relations uses, told a very different story of the discovery:
Most notably, Baer’s draft report has Jay diving with “two friends from Mexico” instead of with Steve. In addition, the draft treatment indicates that rather than picking up a couple stones and immediately taking Steve back up to the surface, Jay picked up some stones and then continued to swim further in order to look for other indications of a shipwreck. According to Baer’s draft treatment, after Jay took his friends to the surface, the three of them used a system of loose ropes wherein Jay and one diver would load a bag full of the stones and then “along with a man in the boat pulling on a rope, they would swim the bag to the surface, dump the stones in the boat, then return to the bottom,” recovering “[i]n about four hours ... eighty pounds of emeralds” that first day. This account substantially differs from Jay and Steve’s testimony that they simply filled their four sandwich-sized plastic bags and then, out of air, returned home.
Id. at 4 (internal citations omitted). Nevertheless, the tale continues:
The stones were subsequently scattered across the country, and indeed, the world. Jay and Steve’s first move was to bring stones to New York City and Washington, DC, where they showed the stones to potential investors as well as gemologists and other experts, including an official from the Smithsonian. Jay gave stones to a jeweler in Pittsburgh, Pennsylvania, to have the stones cut and made into some pieces of jewelry. Jay testified in trial that the jeweler produced finished pieces of jewelry that filled four gallon-sized bags comprising “a couple hundred stones.” One of the investors was given some stones, one of which was made into a necklace for his wife. Jay took bags of the stones to his ill older brother and left them for his brother to photograph. Jay shipped a half bagful of stones to his younger brother in Hawaii, who showed them to potential investors before carrying them back to New York. City a few months later. Once this admiralty case was filed, Plaintiff commenced to try to reassemble the stones in the jurisdiction of the United States Court in Key West. Some of the stones were slowly recalled back to Key West and New York City, and some stones were sent to experts in Switzerland, France, and Columbia for evaluation.
In addition to removing stones from Key West, the pair actually planted some back into the ocean as well. Steve testified that between January and April of 2011, he filmed a promotional video at an underwater site location in approximately 35 to 40 feet of water. He placed forty stones into the water, set them on the floor of the ocean, and then proceeded to recreate the original find on film. Steve testified that they pre-counted the stones to keep track of them. According to Steve, everyone involved in the filming of the video knew it was not the actual site, and the video was never shown to anyone.
At some point, representatives from the CBS program Sixty Minutes came to be in touch with Jay and Steve. Over several months between the fall of 2011 and early 2012, the CBS crew filmed footage for the segment, both in the ocean and interviews on dry land, and paid for some of the expert evaluations of the stones. The footage of the dive trip shows Jay telling the CBS crew that-the stones are worth millions of dollars, and that one particular find was worth “easily” $100,000. These amounts are in stark contrast to the testimony presented at trial on December 6, 2012 by Motivation’s expert, Manuel V. Marcial. Marcial, a Key West jeweler with fifty-six years in the emerald business, testified that the overall collection of stones that he inspected (with some exceptions) was of a very poor quality that would not interest a responsible dealer. In fact, Marcial testified that in his opinion a liberal value of the stones would be a combined total of $50,000, of which 1 or 2% would be of commercial value. He further described demonstrating to Plaintiffs lawyer, on a court recess during trial, how one of the “emeralds” from the Plaintiffs exhibit crumbled in his hand when he applied pressure from his fingers. He testified that such crumbling was an indication of poor quality, worthless emeralds.
Expert reports in evidence as well as testimony during trial established that at least a portion of the stones in evidence have epoxy or oil on them. Testimony indicates that such epoxy is a modern material that would not have' been in existence prior to the 19th century and would have disintegrated entirely given enough time under water.
On September 6, 2012, [Plaintiff] JTR [Enterprises, LLC] filed its Complaint against “An Unknown Quantity of Colombian Emeralds, Amethysts and Quartz Crystals located within 8,000 yards of a point located at coordinates 24°57.79 North Latitude and 81°55.54 West Longitude.” ... JTR published “Notice of Action In Rem and Arrest of Property” in The Citizen, a newspaper in Monroe County, Florida, pursuant to Supplemental Rule C(4) for Certain Admiralty and Maritime Actions of the Federal Rules of Civil Procedure as well as Local Admiralty Rule C(4). Two claimants respond and filed timely appearances: Clawdb LLC, Azalp LLC, Darn LLC, and M Ventures LLC filed a “Motion to Intervene,” and [Claimant] Motivation Inc. filed a “Verified Statement of Right and Interest and Claim of Motivation, Inc.”
Id. at 5-8 (internal citations and footnotes omitted).
The standard procedure for Admiralty cases in the Southern District of Florida is for finders/salvors to file suit in admiralty and bring the subject material into custody of the Court to establish in rem jurisdiction over the material. A warrant for an arrest of the res issues, a substitute custodian is appointed, and after publication of Plaintiffs claim is made, anyone having a claim may so state and be heard at trial. Id. at 12.
Motivation, Inc., by its filing of October 16, 2011 (DE # 10), was the only Claimant. It immediately commenced discovery and demanded inspection of the emeralds to determine whether they could have come from one of the 17th Century shipwrecks to which they have title, the Nuestra Seno- m De Atocha (the “Atocha”) or the Santa Margarita. DE # 47. According to Motivation’s original theory, the emeralds could have floated forty miles in a barrel from the site of the Atocha to the site of the alleged new “discovery” by Plaintiff. DE # 10. JTR disputed this theory, and moved to dismiss. DE # 40, filed December 1, 2011. Because of this dispute, the Court denied Defendant Motivation’s requests for inspection and granted a stay of discovery until' the Court could determine the legal sufficiency of Motivation’s claim. DE # 55; DE # 69. After test results revealing the presence of modern epoxy on some of the emeralds were finally revealed to the Court DE # 82, filed April 18, 2012, and after Motivation amended its claim to change its theory from floating barrels to intentional theft from the Atocha site (DE # 94, filed July 3, 2012), the Court ordered JTR to produce the emeralds for inspection by Motivation’s expert (DE # 117, entered August 7, 2012). After inspection, Motivation’s expert concluded that the emeralds did not come from the Atocha or Santa Margarita. Motivation withdrew its claim to the res on August 17, 2012.
What then occurred is best described in this Court’s Admiralty Order as “systemic difficulty in achieving the delivery of the res into the jurisdiction of the Southern District of Florida,” which saw the res “five months into this action [if not later] ... apparently scattered between Key West, New York, Pennsylvania, France, Switzerland, and Columbia, if not elsewhere.” Id. at 9-10. This “caused a marked deviation from this Court’s prior and well-established procedures” so much so that, as Judge King found in the substantively entered Admiralty Order of January 25, 2013 (DE # 199), the Court could not “find that the material ... under the Court’s arrest is the entire res.” Id. at 13. Furthermore, the Court could not be “certain that the material shown to the expert witness ... was the same material retrieved from the ocean floor and ... contained [in] the res ....’” Id.
This Court’s Opinion and Final Order, entered at the conclusion of the trial held December 3 through December 21, 2012, denied any relief to Plaintiff JTR Enterprises, Inc. on all claims, holding:
The law of salvage calls for a marine peril. This element may be satisfied by an “ancient, abandoned shipwreck.” Santa Margarita decision [Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel], 556 F.Supp. [1319] at 1340 [(S.D.Fla.1983)]. When there is a shipwreck involved, Plaintiff can provide documentation of the ship, its cargo, dates, etc. which allows the Court to make certain logical assumptions as to the owner of the material (e.g. the King of Spain). Then the Court can require the owner to provide a salvage award.
In the instant case, however, there is no shipwreck, and no proof that the stones were ever lost in the first place. The only evidence is that Jay and Steve retrieved the material from the ocean floor on and after January 11, 2010. But the genuineness of the act of retrieving the material does not prove that the material was previously lost. The material may never have been lost, if Motivation’s claims are correct that Plaintiff owned the material, dropped it into the ocean, and then retrieved it. To give an appearance of discovery of Spanish Treasure, without a shipwreck, without an owner, and indeed without a showing of a marine peril, the Court cannot find the law of salvage applies in this case.
Id. at 18-19.
Further, in light of Jay’s delivery of the res to a jeweler in Pittsburgh to have certain of the stones cut, finished pieces of which filled four gallon-size bags, this Court found that “even if the Court were to apply the law of salvage, Plaintiff has forfeited any right to a salvage claim due to exploitation of the res for personal use.” Id. at 20.
As for JTR’s claim for title under the law of finds, this Court first laid out the elements required to sustain such a claim: “(1) intent to reduce property to possession, (2) actual or constructive possession of the property, and (3) that the property is either unowned or abandoned.” Id. at 16 (internal citation omitted). In its analysis of this claim, this Court found that JTR failed to prove entitlement to title as follows:
The first difficulty arises with regard to the requirement of continuous possession. As relayed above, the retrieved res was separated and sent, piecemeal, across the world. While Jay and Steve have testified that the entire res has been returned, Steve also admitted during cross examination that he does not know for sure that there was no break in the chain of custody. The Court agrees; even assuming that any stones sent to laboratories or other scientific experts were treated professionally and completely returned, there were too many other individuals carrying the stones from one place to another out of the presence of Jay and Steve (e.g. the investor who received three stones and gave at least one to his wife, Jay’s older brother who kept them overnight for photographs and sprayed them with cooking spray, Jay’s younger brother who shuttled them around Hawaii, and Jay’s younger brother’s wife who carried some stones to a bank in Hawaii, to name a few) to rule out interference with, or replacement of, the stones. It is also impossible for the Court to be certain that all of the stones eventually arrived back to Key West for that same reason. This issue casts a not-insignificant shadow of doubt over the possession elements of a claim under the law of finds.
The third element calls for the res to either have never been previously owned, or to have been lost and abandoned by its owner. Never previously owned implies local flora or fauna that is indigenous to the area of retrieval. The testimony indicates that the res is comprised of stones which are not indigenous to the bed of the Gulf of Mexico. Therefore, the Court moves to the other option: whether the res has been lost and abandoned by its original owner. In other words, the Court must address the elephant in the room: how did these stones come to be sitting on the ocean floor in January of 2010?
The court in Columbus-America Discovery Group v. Atlantic Mut. Ins.] is quite firm on the requirement for clear and convincing evidence of abandonment, but carves out an exception for cases in which there is “an ancient and longlost shipwreck” and no owner files a claim. 974 F.2d [450] at 464-65 [(4th Cir.1992)]. In such cases, the court may infer abandonment. This record is devoid of any evidence of any shipwreck, 16th Century Spanish Galleon, or any proof of abandonment by a prior owner. The res has appeared seemingly out of thin air, without proof of the source of origin, of transportation or prior ownership. Plaintiff has failed in this essential element of proof. Duncan Matthewson in Ex. # 125-1 and 2 (DVDs) suggests that the emeralds were possibly contained on the deck of a Spanish Galleon in a barrel of gems, that got washed overboard in a storm, but this is no more than mere speculation by the witness obviously intended to influence the CBS crew that 16th Century Spanish Treasure was involved.
Id. at 20-21.
The failure of JTR to prove its claims, the incredible nature of Jay and Steve’s story (and indeed much of their testimony), and rumors of fraud revealed in court filings (see e.g., Joint Pretrial Stipulation, DE # 163, filed November 23, 2012) and in testimony adduced at trial led this Court to make an observation that would later prove particularly prescient:
When all is said and done, there are two options: Jay and Steve legitimately found lost stones on the floor of the Gulf, or Jay and Steve placed stones acquired elsewhere on the ocean floor in order to “find” them and thereby establish an ancient provenance and greatly enhance the value of the stones and the reputation of the men as treasure sal-vors. There is just as much support for the theory that Jay and Steve planted the stones as there is for the assertion that they found them. The Court cannot simply accept the un-contradicted testimony of Jay and Steve that they followed a treasure map to the site, dove to the floor, and found the emeralds. Each story represents one possible interpretation of entirely circumstantial evidence, and neither persuades the Court.
Id. at 22.
Accordingly, this Court declined to issue either an award in salvage or title to the res under the law of finds. Rather, this Court simply returned the res to the parties who physically brought it into court (JTR, Jay, and Steve), and expressly made “no finding as to the type, source, value, provenance, or origin of the stones comprising the res.” Id. at 23.
The rumors of fraud, the delay in getting the stones into the jurisdiction of the Court, and the refusals to allow Motivation an inspection of the emeralds early on in the case, thereby prolonging its involvement and multiplying its legal costs, all resulted in Motivation’s original Motion for Sanctions (DE # 123, filed August 27, 2012). This Court severed the sanctions motion from the Admiralty Trial. DE # 172. Judge K. Michael Moore held an evidentiary hearing on the sanctions issue from January 13-15, 2014. It is here that the tall tale ends, and the discovery of truth begins.
B. The Truth — Judge Moore’s Sanctions Trial/Evidentiary Hearing
After nearly a year of discovery into the issue of sanctions, Judge Moore’s three-day trial on the subject culminated with a stunning on-the-stand revelation from a subpoenaed witness and a finding by Judge Moore that the whole case had indeed been designed from the beginning to commit a fraud upon the Court:
The truth is that in 2010 Miscovich purchased a total of eighty pounds of raw emeralds from JR Emeralds, a jewelry store in Jupiter, Florida. According to the testimony of Jorge Rodriguez (“Rodriguez”), the owner of JR Emeralds, Miscovich purchased the Emeralds over four visits in March, May, August, and September [of 2010], Each trip Misco-vich purchased approximately 20 pounds of emeralds for approximately twenty thousand dollars for a total of approximately eighty thousand dollars. By purchasing the Emeralds and then “finding them” at the bottom of the ocean, Miscovich engaged in fraud to vastly increase their value as purported “sunken treasure.”
Judge Moore’s Sanctions Order, DE # 445 at 2. (internal citations omitted).
Further, after having put Rodriguez on the stand for the purpose of revealing his role in Jay’s acquisition of the emeralds and thereby exposing this fraud:
In the closing arguments of the sanctions hearing,' Janssen & Siracusa, JTR’s counsel, admitted JTR’s wrongdoing. They admitted that “the scheme to defraud was to represent emeralds of a certain quality as having a higher quality based on their origin from an antique shipwreck.” JTR’s counsel admitted that the “artifice to defraud” was to use the District Court to grant “the imprimatur or the blessing or the Good Housekeeping seal of approval to say that ... these are antique emeralds.”
Id. at 14. (internal citations omitted).
Accordingly, Judge Moore found “by clear and convincing evidence, that a fraud has been committed upon this Court,” id. at 16, and that “Misc.vich was clearly the mastermind behind this whole scheme.” Id. at 18. Judge Moore imposed sanctions against Jay in the amount of Motivation’s fees incurred from October 16, 2011, the date Motivation entered the case, through October 29, 2013, the date Jay Misc.vich committed suicide. Id. at 20.
In addition to exercising the Court’s inherent power and assessing sanctions against Jay’s estate for his act of committing a fraud upon the Court — about which Judge Moore found that “there is no starker example of bad faith,” id. at 19 — Judge Moore assessed sanctions against Plaintiff JTR for not disclosing to the Court or to Motivation the presence of epoxy on the emeralds. Id. at 17. At Judge Moore’s sanctions trial it was revealed that in early December of 2011, JTR and its admiralty
counsel at the time, David Horan, learned the results of testing being conducted on the emeralds by French and Swiss labs. Id. at 9-10. These tests showed that some of the emeralds had epoxy on them, and because epoxy did not exist until the 19th century, the emeralds could not have come from Motivation’s 17th century Spanish galleons the Atocha or Santa Margañta. Id.
As Plaintiff JTR’s admiralty counsel, Horan believed he had a duty to the Court to disclose the test results, considering his previous representations to the Court on the possible origin of the emeralds contained in a report Horan filed on October 18, 2011. Id. at 11. This report, authored by archaeologist R. Duncan Mathewson, III and titled “Underwater Archaeological Investigations of the Emerald Site off the Florida Keys Research Design Executive Summary,” opined that the emeralds “clearly represented] a cargo loss at sea” and that an approximate date range for the site could be from 1570-1700, though “more research is required, before a more definite date can be determined.” DE # 19 at 9. Horan testified before Judge Moore that he had “heated discussions” with Silverstein over disclosure of the lab results. DE # 445 at 11-12.
JTR did not disclose the results to the Court, however. Instead, JTR reported the French and Swiss lab results to CBS and the 60 Minutes team, id. at 11, and arranged for more testing of the stones by another lab with CBS’s assistance. Id. JTR filed a “Second Status Report” on January 6, 2012, that only revealed that testing was ongoing and results would be shared with the Court “once all of these analyses are completed ... and JTR is in possession of final reports from each of the GIA, the French and Swiss labs.” DE # 54 at 3. JTR did not reveal the results of these tests to the Court or to Motivation for a period of four and a half months from when it first learned of the probable results in early December of 2011, until April 18, 2012, when it filed its “Third Status Report.” DE # 82. Judge Moore held that once JTR first learned this information, “which indicated that the Emeralds were not from the Atocha or the Margarita,” JTR “had an obligation at that point to disclose this information to the Court.” DE # 445 at 17. Judge Moore found this obligation to exist “[r]egardless of whether this report necessarily meant that the Emeralds could not be from the Atocha or the Margarita.” Id. Judge Moore went on to specifically find with regard to this obligation that
At this point, JTR was on notice that these Emeralds likely did not come from the Atocha or the Margarita (or any ship that did not sink in the past century, for that matter) and they should have similarly put the Court and Motivation on notice of that information. The fact that JTR told 60 Minutes in no way diminishes its obligation to this Court. In fact, it demonstrates that JTR knew that something was going on and that these reports would have a substantial impact on the adjudication of the res. JTR was obligated at that point to make the Court aware of the information.
Id. at n. 16.
The Court imposed this sanction because JTR had withheld the epoxy results from the Court and Motivation, and awarded Motivation its attorneys’ fees incurred from December 2, 2011, through April 18, 2012. The Court imposed this sanction because Plaintiff had withheld the epoxy results from the Court and Motivation. Id. at 18. It was hot imposed for Jay’s lies about the alleged “discovery.”
During Judge Moore’s Sanctions Trial, and after the fraud on the court had been revealed, the Court granted Motivation leave to file an Amended Motion for Sanctions to be directed at any other parties Motivation thought responsible for committing this fraud. Judge Moore further found that the crime-fraud exception to the attorney-client communications- privilege applied and compelled the production of previously privileged email and other communications between and among JTR, its members, and its counsel. See DE # 424; DE # 444. This resulted in the production of hundreds of emails and discovery of other substantial evidence not previously disclosed to the Court or Motivation. The evidence that has come to light since those orders is the focus of this Opinion. A large part of the following findings of fact were either deliberately withheld in the trial on the salvage case held before Judge King in January 2013 or constitute complete perjury by the original conspirators Jay Miscovich and Steve Elchlepp.
II. Findings of Fact
a. Prologue — The Genesis of a Fraud
Jay Miscovich invested in Motivation, Inc. in approximately 2009. It was probably what he observed during that experience as a treasure salvage investor that inspired him to devise this fraudulent conspiracy to use the federal Admiralty Court to pervert justice. Though no one but Jay could have known what he meant when he testified under oath at the Admiralty Trial, his words foreshadowed his fraud:
I started realizing that [with] most of these treasure hunting companies, the real treasure was making money by taking it from their investors, and they weren’t really looking for treasure. [So] I decided to do it on my own and decided I could do it better.
Jay Miscovich 12/4/12 Admiralty Trial Testimony, Ex. M41 at 10.
Of course we now know that this is precisely what Jay did. As Judge Moore found, Jay “managed to successfully convince his investors, lawyers, employees of the Smithsonian, appraisers, jewelers, family, friends, the general public, and many others, including investigative reporters from CBS’ 60 Minutes, that he had discovered and recovered this treasure from the seafloor [and] allowed millions of dollars to be invested into this fraud before the Complaint in the instant case was even filed.” DE # 445 at 19.
b. Bruce Silverstein’s Initial Involvement with Jay Miscovich
Bruce Silverstein has practiced law at the Delaware law firm of Young Conaway Stargatt & Taylor LLP (“YCST”) for his entire career, approximately 28 years. His practice focuses on corporation law, which he describes as “including alternative entities ... limited partnerships ... large mergers and acquisitions ...” and similar issues. Transcript of Amended Motion for Sanctions Hearing, December 4, 2014 (“Hearing Tr. 6”), at 112-13. In late January of 2011, Silverstein received a phone call from Hawaii attorneys Mark Davis and Mike Livingston of the law firm Davis Levin Livingston (“DLL”) about the possibility of representing Jay, Steve, and Scott Miscovich (Jay’s brother) in defense of a lawsuit filed against them in the Delaware Court of Chancery (the “Delaware Litigation”). Id. at 116. The Delaware Litigation, filed on January 19, 2011, was brought by investors in Jay’s emerald find (the “New York Investors”), and was described by Silverstein as dealing “with a question of corporate governance and who was in charge of an entity, an alternative entity.” Id. at 117. According to Silver-stein, the Delaware Litigation boiled down to “there’s been this amazing and valuable emerald find and people are fighting over who owns it.” Id. at 124.
Silverstein testified that, in addition to, the phone call from Davis and Livingston about YCST’s possible retention in the Delaware Litigation, on the same day he also received a phone call and an email from New Orleans attorney Lou Fishman about YCST’s possible retention in the same matter. Id. at 117. According to Silver-stein, attached to the email from Mr. Fish-man was an email from Jeffrey Post, Ph.D. (“Dr. Post”), the Curator of the National Gem and Mineral Collection at the Smithsonian Institute, to the New York Investors dated September 9, 2010, in which Dr. Post describes results of analytical scanning electron microscope testing on the emeralds. Id. at 123. Dr. Post’s email, which Silverstein testified to having read the day he was first approached to represent Jay, Steve, and Scott in the Delaware Litigation, states that flecks of gold, silver, and copper were found in cracks in the emeralds, the presence of which elements “seems consistent with the idea that these emeralds were on the seafloor associated with gold objects for some period of time.” Silverstein Ex. 1. Silverstein and YCST accepted the representation and were engaged by Jay, Steve, and Scott for their defense in the Delaware Litigation. Hearing Tr. 6 at 117-18.
In addition to Davis and Livingston of DLL, Jay, Steve, and Scott were also being advised by Paul Sullivan, Scott’s neighbor and friend in Hawaii and a self-styled political organizer who worked on the campaigns of Presidents Carter and Clinton. Id. at 8. Sullivan became involved with Jay and Steve through Jay’s brother Scott sometime in early 2010. Id. at 9. Sullivan testified that, in addition to acting as an advisor to Jay, Steve, and Scott, in December of 2010 he had traveled to Colombia at Jay’s request and met with the president of Colombia to convey Jay’s offer of 70% of the emeralds in exchange for the government of Colombia’s physically running the salvage operation. Hearing Tr. 10 at 113— 14. Sullivan further testified that he made a second trip to Colombia in March of 2011 for further discussions with the Colombian presidential cabinet on this issue. Id. at 115. Silverstein testified that he was aware of Sullivan’s trips to Colombia, made both before and shortly after he was retained in the Delaware Litigation, and that he found it “inconceivable ... that Jay Misc.vich would not only allow, but support this process if these were not emeralds that had been found in the Gulf of Mexico and were genuine Colombian emeralds.” Hearing Tr. 9 at 22.
Shortly after being retained in the Delaware Litigation, in late January of 2011 and into February of 2011, Silverstein began to review many documents related to that case. The Verified Complaint in the Delaware Litigation, which the New York investors filed against Jay, Steve, and Scott on January 19, 2011, was filed by lawyers at the New York law firm Willkie Farr & Gallagher (“Wilkie Farr”). Silver-stein Ex. 7. Further, the New York Investors had filed on January 11, 2011, another Verified Complaint against Jay and Steve in the Circuit Court for the 16th Judicial Circuit in and for Monroe County, Florida, in which case the New York Investors were represented by both the Florida law firm Colson Hicks Eidson as well as by Willkie Farr. Silverstein Ex. 4. Filed along with this complaint were affidavits by two of the New York Investors, Mr. Dean Barr and Mr. Neil Ash. Silverstein Ex. 5; Sil-verstein Ex. 6. In these affidavits, these New York Investors stated that Jay had made a discovery of “sunken treasure, namely emeralds and other gemstones.” Id. These affidavits, dated January 10, 2011, further stated that these New York Investors had invested- approximately two million dollars in Jay’s discovery. Id. Sil-verstein received and reviewed a copy of this complaint and these affidavits shortly after he was retained in the Delaware Litigation. Hearing Tr. 6 at 142. Silver-stein testified that “the fact that [the New York Investors] were represented by these lawyers and were spending a lot of money to take control of the emeralds” contributed to his own belief in' the legitimacy of Jay’s find. Id. at 158. Further, Silver-stein testified that he believed the New York Investors’ investments and selection of these expensive, respected, and high-powered law firms said a lot about their own assessment of the veracity of Jay’s story and the value of the emeralds. Id. at 135,160.
Also among those documents that Sil-verstein reviewed around the time he was first retained in late January of 2011 was another email, dated July 13, 2010, sent by Barr to Bob Toppe (another of the New York Investors), reporting the results of a meeting that Barr and Jay had had that day with Dr. Post of the Smithsonian. Hearing Tr. 6 at 164. In the email, Barr told Toppe that Dr. Post was very excited by the emeralds he had inspected, exclaiming them to be “the most rare type of emeralds he had ever seen,” that examining them had been a “once in a lifetime experience,” and that he was interested in curating a “major display” of the emeralds alongside the Hope Diamond. Silverstein Ex. 8. Silverstein testified that after reviewing this email in late January 2011, he called Dr. Post to confirm its content. Hearing Tr. 6 at 131-132. During this phone call, Dr. Post confirmed what Silver-stein had read in the July 13, 2010, and the September 9, 2010, emails; specifically, that Dr. Post had examined some of the emeralds, that “they were one of the most exciting things he had seen as the curator of the gem collection of the Smithsonian Institute,” that the Smithsonian did want a five-year loan of some of the emeralds for display near the Hope Diamond, and that Dr. Post had identified microscopic flecks of gold in the emeralds. Id. at 133, 163.
In addition to the information he obtained from Dr. Post, shortly after Silver-stein was retained in the Delaware Litigation, in late January or early February of 2011, Silverstein received and reviewed information on the appraised value of certain of the stones. Id. at 135. Among these appraisals was a report (dated December 9, 2010) by Josh Lents of the Gemological Appraisal Laboratory of America (the “GAL”). Silverstein Ex. 2. According to the GAL, which in preparing its appraisal had only evaluated the characteristics and value of a small fraction of Jay’s emeralds, the estimated retail value of just twenty stones was approximately $120,000. Id. This total did not include one specimen, about which the GAL had concluded “Due to rarity and exceptionally preserved condition, value cannot be accurately stated.” Id. Finally, in an observation that would later prove significant, the GAL described each stone it examined as “Untreated — No evidence of oil or resin.” Id. In late January or early February of 2011, Silverstein went to New York City and personally met with Lents, the GAL appraiser who prepared the report. Hearing Tr. 6 at 136. Silverstein brought to the meeting “a few selected emeralds, including ones that [Lents] previously had appraised.” Id. at 138. Finally, Silverstein testified that he personally brought certain emeralds to Sotheby’s in New York City, where he met with the president of Sotheby’s and its head gemologist. Id. at 174. According to Silverstein, the head gemologist examined one emerald in particular under a jeweler’s loupe and estimated its value to be between $25,000 and $40,000. Id.
With all of this information in hand, in July of 2011, Silverstein created an entity called P & B Finance LLC through which he and Sullivan invested in and obtained a 1.5% equity interest in the emeralds. Hearing Tr. 9 at 37. Silverstein testified that he invested $80,000 of his own money. Id. Silverstein further testified that as part of the retainer agreement for the Delaware Litigation, his law firm, YCST, as well as the Hawaii law firm who referred that case to him, DLL, each obtained a 5% equity interest in the emeralds. Id. at 16.
c. Dave Horan Retained by JTR
Silverstein testified that early on in his representation of Jay, Steve, and Scott in the Delaware Litigation he advised his clients that they should seek the advice of an admiralty lawyer to determine whether an admiralty filing would be appropriate and advisable. Hearing Tr. 6 at 115. In early March of 2011, Silverstein, Jay, Steve, Scott, Sullivan, Davis, and Livingston, interviewed Key West admiralty attorney David Horan by videoconference. Id. Mr. Horan has extensive experience in the area of salvage. Hearing Tr. 1 at 142. By March 15, 2011, Jay entered into a retainer agreement with Mr. Horan for representation “with respect to, among other things, admiralty and customs issues.” M25. This agreement listed Silver-stein as Jay’s “general outside counsel.” Id. at ¶ 1. Paragraph 4 of this agreement, titled “Authorization and Decision Making,” required Horan to “seek specific authorization from Client and Client’s general outside counsel” before undertaking any of a litany of tasks necessary to the maintenance of the instant action. Id. at ¶ 4. Horan testified that in practice, as his representation of Jay progressed, “[Mr. Silverstein] was the primary attorney representing JTR.” Hearing Tr. 1 at 45.
Horan testified that prior to hearing from or being retained by Jay, Steve, Sil-verstein, Sullivan, or “any of the JTR people” — or prior to early March of 2011 — he received a call from Len Tepper, the producer of 60 Minutes. Hearing Tr. 1 at 42. During this call Mr. Tepper told Horan that he was considering producing a segment for the show on Jay’s find, and asked whether Horan would be an “expert source” for the segment. Id. After meeting with the JTR people, but before being retained in early March 2011, Mr. Horan, an “accomplished diver,” went on what he has called a “sanity check” dive with Steve at the site of the find. Hearing Tr. 1 at 142; DE # 372 at 100-10. Horan testified that during this sanity check dive he found a number of emeralds and amethysts, with several of the stones being “impacted” in the mud under several inches of silt, which indicated to him that they had been down there for some time. Hearing Tr. 1 at 57, 141 — 42. Horan testified that he then became interested in this case, saying “when you pull up a handful of emeralds, you get interested.” DE #372 at 109 — 10. Hor-an was retained as admiralty counsel after this dive. Id. at 110.
Before JTR filed this case on September 6, 2011, the Delaware Litigation settled. 8/28/14 Bruce Silverstein Affidavit, Motivation Ex. M-8 at ¶ 18. According to Silver-stein’s affidavit, a settlement agreement was executed and preliminarily approved in the Delaware Litigation on March 29, 2011, and was set for a final approval hearing on August 19, 2011.
d. Peter Tobia Warns Silverstein That Jay is Not Truthful
On August 19, 2011, the Delaware Court of Chancery held a hearing to consider final approval of the settlement in the Delaware Litigation. Hearing Tr. 6 at 179. Just prior to this hearing, Silverstein was approached by Peter Tobia, a friend of Jay’s, who asked to speak with Silverstein. Id. at 180. Tobia told Silverstein that he “knew information that [Silverstein] should have about Jay and his discovery, and it was important that [Silverstein] understood it.” Id. Silverstein testified that during that meeting Tobia refused to provide details about this “information” until he “had his deal.” Id. According to Silver-stein, after Tobia refused to elaborate further, either on the “deal” he required or the information that he had, Silverstein told Tobia that he had a hearing to attend and didn’t have time to deal with him. Id. at 181-82. Silverstein thought Tobia was an “untrustworthy character,” and at that point Silverstein returned to the Delaware settlement hearing for approval that same day. Id.
That night, at 10:34 p.m. on August 19, 2011, after the settlement hearing had concluded, Silverstein forwarded to Horan, with copies to Jay, Steve, Sullivan, Scott, Davis, and Livingston, a copy of an email Jay had sent to Tobia on June 28, 2011. Silverstein Ex. 9. In the forwarded email, Jay informed Tobia that a 3% interest in the find was all he was going to get, and mentions Tobia’s “misconception that [the treasure] was found in a treasure chest on land somewhere,” adding “we wish it was [found in a treasure chest on land somewhere because] a beach/land find in Florida is ‘finders keepers’ no litigation of any kind ... [but] because it is in international waters we have a huge mess.” Id. at 2. In Silverstein’s cover email to Horan and the rest of the JTR people, he explained that a series of emails from Tobia that he had reviewed demonstrated an “effort to persuade Jay to award Mr. Tobia a 5% ownership interest in [t]he treasure.” Id. at 1. Silverstein went on to tell the group that “[he] reviewed all of the e-mails, and there is no suggestion that Jay is hiding anything or that he found the emeralds anywhere other than in International Water;” that “Jay and Steve both understand the drastic consequences that would flow from their supporting a false admiralty filing (including the possibility of jail), and that it will be very easy to determine whether the treasure truly comes from the site they have identified. Nonetheless, they both support making the admiralty filing, so that they can proceed to obtain title to the treasure.” Id.
The next morning, at 10:27 a.m. on August 20, 2011, Silverstein sent an email to Tobia. Silverstein Ex. 10 at 4. Silverstein referenced their brief encounter at the courthouse the day before, and told Tobia that
[t]his is a very serious matter, and you have a responsibility to come forward if you truly believe that Jay and Steve are committing a fraud and/or other criminal misconduct. On the other hand, if you do not have a legitimate basis for your claims, I encourage you to formally retract them now, before any harm befalls my clients as a result of your assertions. One way or another, you must stop threatening to reveal what you claim to be the truth- in the absence of Jay’s agreement to honor what you claim to be your arrangement for an ownership interest in the discovery.
If you truly have knowledge that Jay and Steve are misrepresenting the location of Jay’s discovery that gave rise to the Delaware litigation, I encourage you to let me know the specifics and source of your information immediately, and without any strings attached to your doing so.
Id.
Silverstein concluded this email with a request that, should Tobia wish to discuss this issue further, he reply to this email and Silverstein will call him. Id. Within the next forty minutes, Silverstein and To-bia spoke, prompting Silverstein to send a second email at 11:07 a.m. thanking Tobia for the call and asking Tobia to speak with him again at some point that day between noon and three. Id. at 3.
Later that afternoon, at 2:33 p.m., Sil-verstein sent a third, and lengthy, email to Tobia, revealing that they were able to speak again as he had requested. Id. at 2. Silverstein’s email first states that.
I understand from our call earlier today that you continue to contend that the Treasure Jay discovered was not discovered in international waters off the coast of Florida, as Jay insists to be the case. Moreover, I further understand that you believe the Treasure to have been discovered “on land in Florida — or something like that.” I also understand that you conten[d] that a Treasure Chest may have been involved. I spoke with Jay and Steve, and they both deny your assertions and insist that the Treasure was discovered in International waters off the coast of Florida.
Id. Silverstein continued:
Based on the foregoing, Jay has authorized me to make you the following offer:
1. You will provide your complete and unrestricted cooperation in helping Jay and his advisors understand all details and supporting evidence for your story, which contradicts Jay’s assertions.
2. If, as you contend, the Treasure was discovered at a location different than Jay already has identified to us, Jay (and others) will allocate to you a 10% interest in any treasure and/or any value that might be realized as a result of its discovery.
3. If, as Jay contends, the Treasure was, in fact, discovered in International Waters off the coast of Florida, you will relinquish any claim you believe to have in the Treasure and/or any value that might be realized as a result of its discovery.
Jay also has asked me to communicate the following alternative to you:
Despite what Jay views to be fraudulent and defamatory accusations respecting Jay and the location of his discovery, Jay recognizes that you were (until recently) a good friend, who provided meaningful moral support in the past. Accordingly, if you truthfully do not believe the information you have been hinting at for the past few months (and which you discussed with me this morning), and you are willing to acknowledge that you have no knowledge that contradicts Jay’s assertion that he discovered the Treasure in International Waters off the coast of Florida, then Jay is willing to forgive your past transgressions and allocate a 2% ownership interest in the Treasure that Jay says he discovered in International Waters off the coast of Florida. .
Id. So as not to be misconstrued, Silver-stein added:
To be perfectly clear, Jay’s alternative proposal is not intended to be an inducement to cause you to change your story if you truly believe your story to be true. Indeed, if you truly believe your story to be true, I encourage you to bring it to the attention of the appropriate authorities, so that a proper investigation can be conducted into the location of the Treasure’s discovery. If your story turns out to be true, I expect that you will be rewarded for bringing it to the attention of the appropriate authorities. And, if your story turns out to be a fabrication that was created to place pressure on Jay to allocate some ownership interest to you (or provide you with some other value), I am sure you can guess what potential consequences will follow. One way or another, however, your reporting your story to appropriate authorities will help get to the truth— which you claim to be your only objective.
Finally, although you told me that you are not represented by an attorney in connection with this matter, you did tell me that you had, at some point, spoken with [attorney Peter] Hess — who also was [at] the settlement hearing yesterday on behalf of The Kirby Group (which initially claimed that Jay’s Treasure came from The Kirby Group site, but has now retracted that claim). Accordingly, I am copying Mr. Hess on this e-mail. If Mr. Hess believes your story or has other information (beyond his now debunked story about The Kirby Group), I encourage him to come forward with his information, and not to make any further threats to interfere with Jay’s endeavor.
Id. at 2-3.
Horan was copied on this email as well. Id. Tobia responded by email the next day, August 21, 2011, stating that 1) he had calls in to three attorneys but hadn’t heard back from any of them, it being a weekend; 2) Mr. Hess was going to seek permission from the Kirby Group to also represent Tobia; and 3) someone would contact Silverstein soon. Id.
On September 8, 2011, Silverstein emailed Tobia a fourth and final time stating: “Your e-mail below (which is our last communication) states that you have calls in to three attorneys and someone would contact me soon. That was nearly three weeks ago, and nobody has contacted me. Have you retained an attorney with whom I should be speaking? If not, how do you wish to proceed?” Id. at 1. That same day Silverstein forwarded this entire email chain, comprising all of the emails between Silverstein and Tobia in Silverstein Ex. 10, to Jay, Steve, Sullivan, Scott, Davis, Livingston, and Horan. Id.
Silverstein testified that he did not hear anything further from Tobia after this last email, and none of the members of JTR to whom Silverstein had forwarded the email chain placed any stock in Tobia’s assertions. Hearing Tr. 6 at 198. “To the contrary,” Silverstein testified, “everyone that I spoke with took the position that Tobia was not to be believed and was trying to get something, people couldn’t quite understand what or why, including David Horan, who went forward with the admiralty filing despite this chain of communications.” Id. Silverstein testified that as of September 8, 2011, he thought Tobia to be “an extortionist” and the fact that Tobia never provided any information and his “abject refusal” to do so was telling. Id. at 199.
Prior to January 19, 2011, the date on which the Delaware Litigation was filed and Silverstein was retained, and as discussed previously, two of the New York Investors, Dean Barr and Neil Ash, executed affidavits — each dated January 10, 2011 — in a case filed by the New York Investors against Jay and Steve in the State Circuit Court in Monroe County, Florida. Silverstein Ex. 5; Silverstein Ex. 6. In addition to stating that millions had been invested by the time those affidavits were filed, the affidavits had attached as an exhibit a schedule dated August 6, 2010, of equity ownership shares in “any emeralds (or treasure whatever) recovered to current date and moving forward.” Silver-stein Ex. 5 at 10; Silverstein Ex. 6 at 8. Tobia is listed as having a 8% equity ownership interest in each of these schedules. Id.
Silverstein testified that in conveying Jay’s offer to Tobia on August 20, 2011, he did not participate in any sort of cover up. Hearing Tr. 6 at 196. He testified that
To the contrary, I thought that what was going on here was that we were trying to incentivize Mr. Tobia to come forward with his information so that we could have an accurate understanding of what happened, and we were encouraging him both by providing a financial incentive for him.to come forward with his information if he was telling the truth; and on top of that, I told him that if he didn’t want to do a deal at all, in any event he should go to the authorities.
Id.
Tobia did not accept Jay’s offer, nor did he recant his claim that Jay did not find the emeralds where he said he did.
Two days after Silverstein talked to Tobia, on August 21, 2011, he received additional details of Tobia’s story. Horan forwarded to Silverstein an email dated August 19, 2011, that Horan had received from Peter Hess, a lawyer in Wilmington, Delaware. Motivation Ex. M-31. In Hess’ August 19 email to Horan, he said that that Tobia “is on the periphery, but he’s known Jay Miscovich for a long time- and says that he first became aware of the emeralds in January, 2010.” Hess reported that he had received a call from Tobia on January 23, 2010, during which Tobia “asked a hypothetical as to the legal consequences for treasure discovered ‘in international waters.’ ” Id. at 2. Further, Hess claimed that Tobia reported being present when “the gemstones were first shown to Steve — whose eyes bugged out.” Id. Hess claimed that he had “no reason to believe, that Peter Tóbia would tell me anything except the truth. Perhaps not the whole truth, but trustworthy as far as it goes.” Id. Silverstein testified that he read this email and it gave him concerns, not about any part of Jay’s story, but about Hess: “That gave me no suspicious [sic]whatsoever about the veracity of Jay and Steve’s claim. But it gave me concerns about Mr. Hess, because he was revealing attorney-client information in this e-mail.” Hearing Tr. 9 at 77. Silverstein further testified that “he spoke to Mr. Horan about Mr. Hess, and he told me that Mr. Hess at one time worked for Mr. Horan and had stolen a number of his files and that he was not a person to be trusted.” Id.
In October of 2011, after this admiralty case was filed, JTR agreed to settle with Tobia, granting him a 3.25% equity interest. Hearing Tr. 9 at 72. Silverstein testified that he was against the decision to enter into any agreement with Tobia, but that he was on vacation with his family when this settlement was reached. Id.
e. Non-Spanish Coins — Jay and Steve Lie to Horan
Prior to the filing of the Admiralty Action, Jay was advised by the New York Investors and others that because the emeralds had been found in international waters he should take his discovery to a foreign country to obtain title rather than the Courts of the United States. At the Admiralty Trial, Jay testified that he was “advised, for the first year and a half, from at least 20 admiralty attorneys, not to file in [the U.S.] and to take the action to another country ... Gibraltar,' the Dominican Republic, the Cayman Islands.” Jay Miscovich 12/4/12 Admiralty Trial Testimony, Motivation Ex. M-41 at 25.
On August 18, 2011, Horan sent an email to Jay, Steve, Scott, Sullivan, Davis, and Livingston, not copying Silverstein, and attached a draft of the Admiralty Complaint, which he said he was “ready to file.” Motivation Ex. Ml-7. Horan further “strongly recommended” that